B-120980, NOV. 30, 1955

B-120980, NOV. 30, 1955

TO MR. ALFONSO LATONI:

REFERENCE IS MADE TO A LETTER OF SEPTEMBER 29, 1955, FROM HARLEY A. MILLER, ESQUIRE, WRITTEN IN YOUR BEHALF, REQUESTING REVIEW OF OUR SETTLEMENT DATED NOVEMBER 2, 1954, WHICH DISALLOWED YOUR CLAIM FOR PER DIEM IN LIEU OF SUBSISTENCE DURING THE PERIOD OCTOBER 10, 1950, TO MAY 31, 1952, AS AN EMPLOYEE OF THE FEDERAL HOUSING ADMINISTRATION.

YOUR CLAIM WAS DISALLOWED FOR THE REASON THAT DURING THE PERIOD IN QUESTION YOUR OFFICIAL TIME WAS DIVIDED APPROXIMATELY EQUALLY BETWEEN PONCE AND MAYAGUEZ, PUERTO RICO, WHICH WERE CONSIDERED DUAL HEADQUARTERS AND YOU WERE NOT ENTITLED TO PER DIEM AT EITHER PLACE.

THE RECORDS SHOW THAT TRAVEL ORDER NO. 03419, WHICH WAS ISSUED ON THE SAME DAY YOU ENTERED ON DUTY, AND TRAVEL ORDER NO. 01744, DATED JULY 1, 1951, DESIGNATED SAN JUAN, PUERTO RICO, AS YOUR OFFICIAL HEADQUARTERS, AND AUTHORIZED TRAVEL THROUGHOUT THE TERRITORIAL JURISDICTION AS MIGHT BE NECESSARY IN CONNECTION WITH YOUR OFFICIAL DUTIES. YOU COMMENCED TRAVELING ON OCTOBER 10, 1950, THE DAY AFTER YOUR ENTRANCE ON DUTY, AND THROUGH THE ENTIRE PERIOD COVERED BY YOUR CLAIM, ONE YEAR AND SEVEN MONTHS, YOU PERFORMED PRACTICALLY ALL OF YOUR OFFICIAL DUTIES IN AND AROUND PONCE AND MAYAGUEZ. YOU DID NOT PERFORM ANY OFFICIAL DUTY AT SAN JUAN DURING THE PERIOD INVOLVED.

THE LETTER OF SEPTEMBER 29, 1955, SUGGESTS THAT EVEN IF SAN JUAN WAS DESIGNATED AS YOUR HEADQUARTERS FOR THE PURPOSE OF GIVING YOU A SUBSISTENCE ALLOWANCE THIS WOULD MAKE NO DIFFERENCE AS YOU WOULD BE ENTITLED TO IT UNDER 12 U.S.C.A. 1702, WHICH PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"1702 CREATION OF FEDERAL HOUSING ADMINISTRATION

"THE PRESIDENT IS AUTHORIZED TO CREATE A FEDERAL HOUSING ADMINISTRATION, ALL OF THE POWERS OF WHICH SHALL BE EXERCISED BY A FEDERAL HOUSING ADMINISTRATOR * * * THE ADMINISTRATOR MAY * * * APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS HE MAY FIND NECESSARY, AND MAY * * * FIX THEIR COMPENSATION, WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS OR EMPLOYEES OF THE UNITED STATES. * * *"

WHILE IT MAY BE THAT THE FEDERAL HOUSING ADMINISTRATOR HAS AUTHORITY TO FIX THE DUTIES AND COMPENSATION OF EMPLOYEES OF THE FEDERAL HOUSING ADMINISTRATION WITHOUT REGARD TO ANY OTHER LAWS, THERE IS NOTHING IN THE ACT WHICH WOULD PERMIT HIM TO AUTHORIZE PER DIEM IN LIEU OF SUBSISTENCE CONTRARY TO LAW. IT HAS BEEN HELD BY OUR OFFICE THAT TRAVELING EXPENSES INCLUDING PER DIEM IN LIEU OF SUBSISTENCE DO NOT CONSTITUTE "COMPENSATION" AS SUGGESTED IN THE LETTER OF SEPTEMBER 29, 1955. SEE 20 COMP. GEN. 145, 147; 21 ID. 886, 890; AND 22 ID. 392.

THE GENERAL RULE IS THAT THE DESIGNATION OF PERMANENT OR TEMPORARY OFFICIAL STATIONS OF EMPLOYEES IS AN ADMINISTRATIVE DUTY AND RESPONSIBILITY AND THAT IN THE ABSENCE OF FACTS ESTABLISHING OR TENDING TO ESTABLISH THAT THE ADMINISTRATIVE ACTION IS ARBITRARY OR CAPRICIOUS, SUCH ACTION IS NOT OPEN TO QUESTION. FIDELITY AND DEPOSIT COMPANY OF MARYLAND V. UNITED STATES, 55 F.2D 100. HOWEVER, IT IS WELL SETTLED THAT THE OFFICIAL STATION OF AN EMPLOYEE FOR THE PURPOSE OF ALLOWANCE OF TRAVEL EXPENSES AND DETERMINING THE ALLOWANCE OF PER DIEM IN LIEU OF SUBSISTENCE IS REQUIRED TO BE FIXED WITH RELATION TO THE DUTIES TO BE PERFORMED AND THE ACTUAL FACTS AND CIRCUMSTANCES INCIDENT THERETO. SEE 25 COMP. GEN. 136; AND 27 ID. 657.

SINCE IT APPEARS THAT THE PREPONDERANCE OF YOUR DUTY WAS PERFORMED IN AND ABOUT PONCE AND MAYAGUEZ, DURING THE PERIOD OCTOBER 10, 1950, TO MAY 31, 1952, INCLUSIVE, IT WOULD BE CONTRARY TO THE LATTER RULE--- MENTIONED IN THE PRECEDING PARAGRAPH--- TO FIND THAT SAN JUAN WAS YOUR OFFICIAL STATION.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM APPEARS PROPER AND SUCH ACTION MUST BE SUSTAINED.